Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
As I was writing the post yesterday about the downward trend in West Virginia misdemeanor sentencing, I was thinking, well what about felony sentencing? The same principles apply. Why fill up our prisons – at our cost – for property crimes and other non-violent offenders. What’s the point? With all the federal civil rights requirements, we have to provide inmates with medical care, etc. With the perpetrators in prison, the victims aren’t getting any restitution anyways. It’s a lose-lose-lose situation.
Today the Register-Herald had just such an article on this topic, titled “WVU examining prison sentencing: Researchers looking at ways to ease overcrowding in jails.” It quoted senators Kessler and Chafin, both of whom are lawyers:
Back when he was handling criminal law, Chafin recalled how a defendant in court for a property crime likely could have avoided a prison stretch.
But when the victim and his family appeared in court, the sitting judge clearly was moved and came down hard on the defendant, the senator said.
“First thing you know, the guy’s locked up one to 10 and really didn’t need to go,” Chafin said.
Kessler discussed the increase of punishments for many of West Virginia’s criminal statutes:
Within the past decade, Kessler pointed out afterward, the Legislature has raised penalties on two to three dozen statutes, often in response to a sensational crime given voluminous media attention.
“It seems that we do it piecemeal often times in knee-jerk reaction to some type of crime that happens in our communities that gets a lot of headlines,” he said.
“So we go out and double the penalties on those.”
Basically, WVU will be conducting research, and in the end, hopefully someone in the state legislature will be promoting reform with the goal of reducing the state prison population. Mainly this can be done through the decrease of penalty ranges for common property-type crimes, and the promotion and creation of other forms of alternative sentencing. But in the end, we will always have the problem of circuit judges facing reelection, and the goal of reducing prison population will never be an election-winner. Maybe we should also reform the selection procedures for circuit judges, and take politics out of the equation.
- John H. Bryan, West Virginia Attorney
Today the Senate Judiciary Committee of the West Virginia Legislature is hearing evidence on proposed legislation that would reign in the WV Division of Motor Vehicles and their rampant disregard for the due process of rights of those accused of DUI in West Virginia. The Charleston Gazette had an article this morning on the hearings. In West Virginia, DUI charges take two different routes: a criminal action against the defendant personally, and then a civil action against the accused’ driver’s license. In these civil hearings, there is a notorious lack of fairness and due process rights accorded to the driver. The proposed legislation attempts to create more fairness in the process. Though extremely late notice was given regarding today’s hearing, several criminal defense attorneys from around the state who defend DUI’s in West Virginia, have been invited to speak to the committee. Let’s wish them luck and encourage the Legislature to enact this legislation.
We should always err on the side of freedom and liberty – and never on the side of tyranny. Besides, less government is always better….
- John H. Bryan, West Virginia Attorney.
On Friday, the US Supreme Court settled an argument that had been raging for decades: does the 2nd amendment apply to individuals, or does it apply to “well regulated militia’s”? Thankfully, the Supreme Court got it right this time. West Virginians know this better than anyone else: you can’t depend on the police to wake up, take a shower, and drive thirty minutes to your house to protect you from danger. You have to be able to protect yourself and your family.
What still makes me sick, is that some guy (or gal) convicted of some stupid non-violent felony that has nothing to do with guns, will never be able to own a gun. What about his children? Should they be at the mercy of some armed intruder who is aware of the fact that they cannot protect themselves? Should they be required to die because some bleeding-heart know-it-all is anti-gun?
For a great analysis of this recent Supreme Court decision, take a look at this post from the South Carolina Criminal Defense Blog, by Bobby Frederick.
– John H. Bryan, West Virginia Attorney.
I reported on the new West Virginia DUI statute in a previous post, which can be found here. I previously reported that the effective date would be June 1, 2008. From what I have heard from other attorneys, and from the WV Supreme Court, the effective date will actually be June 6, 2008.
This means that if you get arrested for DUI on or after June 6, 2008, then the new law will govern your case.
– John H. Bryan, West Virginia Attorney.
From the Charleston Daily Mail:
A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.
State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.
Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.
Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.
Tincher says the teacher has been suspended from her job.
What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.
Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.
Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today, the full article for which can be found here.
West Virginia Governor Joe Manchin signed the “Castle Doctrine” bill, which provides that residents may use deadly force to repel an intruder or avert a felony crime in the making on one’s property, and it allows such actions to be used as a defense in potential civil litigation.
The name “Castle Doctrine” and the basic theory is the product of a medieval English custom that held a man’s house is his castle, and the wind, but not the king, may enter.
Manchin stated that “Every person’s home is a castle, and every person’s family member is a royal family member.” Senate Majority Whip Billy Wayne Bailey, D-Wyoming, said he considered the measure long overdue.
“It’s part of our culture,” he said. “We’re just codifying in law what is the culture of West Virginia, that a person has a right to defend family and property, even with deadly force. That’s part of culture, without being sued and dragged off to prison. We did quite well on this.”
Manchin agreed, saying, “I think we’ve always felt that. We just now made it legal.”
– John H. Bryan, West Virginia Attorney.
From the Register-Herald:
Drunk drivers with .15+ BAC to face harsher penalties June 1
Law also erases mandatory 24-hour lockup, can reduce license suspension to 15 days
By Mannix Porterfield
A year-long movement to punish drunken motorists with a blood alcohol content of .15 or higher with harsher penalties and encourage others to use an Interlock before they can start a vehicle becomes law in June.
Gov. Joe Manchin made it official Tuesday by signing SB535, the result of an intense research and lobbying effort by Mothers Against Drunk Drivers in West Virginia.
With West Virginia’s passage of the revised DUI statute, only 11 states are without a law that creates the “aggravated” crime of operating a motor vehicle with a BAC of .15 or higher.
Another feature allows first-time offenders blowing a BAC of less than that level to have their licenses reinstated in 15 days, in lieu of the standard 30-day suspension, provided they install an Interlock, a device that prevents an ignition from starting if alcohol is detected when the driver blows into it.
A third element erases the mandatory 24-hour lockup for those with a BAC under .15, thus saving cities and counties some money on inmates sent to regional jails.
“We are very happy to see this finally come to fruition,” MADD’s state director, Donna Hawkins, said Tuesday after Manchin’s decision was announced.
“Very much so. I think it’s going to save lives. It’s definitely going to be a very positive law for West Virginia.”
In the House of Delegates, all provisions were retained, except for one in the Senate version that called for mandatory BAC tests on suspected drunken drivers in accidents that result in deaths or serious injuries.
Sen. Dan Foster, D-Kanawha, a Charleston surgeon and the chief sponsor of the Senate version, had no difficulties accepting this single change in his proposal.
For aggravated DUI, the mandatory penalty calls for two days to six months in jail. Hawkins said her group wanted to focus on this key provision in going after motorists with higher blood alcohol levels since they are responsible for the most carnage.
Two years ago, the most recent one for which statistics are available, drunken drivers caused 129 deaths and were blamed in accidents causing 2,600 non-fatal injuries.
Hawkins said the movement led chiefly by MADD began across the nation about a decade ago to crack down on motorists in an aggravated DUI category.
For most of last year, Hawkins personally led a series of meetings as director of an ad hoc committee of lawmakers, prosecutors, police officials and the Division of Motor Vehicles, working in tandem with a legislative interims panel.
“There were a lot of meetings, a lot of hours,” she said.
MADD was a chief proponent in lowering the BAC from the old standard of .10 to .08 to be declared intoxicated.
Manchin plans to conduct a ceremony April 10 with MADD officials, including its national director, Glynn Birch, and Hawkins.
In advance of the bill formally becoming law, Hawkins plans to tour the state to meet with law enforcement and DMV officials, raising public awareness about it and demonstrating how the Interlocks work.
“We’re going into different communities and talk about this new law and what it’s going to do,” she said.
— E-mail: email@example.com
From the Beckley Register-Herald:
Manchin intends to sign ‘castle doctrine’
CHARLESTON — When the National Rifle Association comes calling at the West Virginia Capitol with legislation in mind, it helps that the nation’s leading hunting and Second Amendment advocate has an ally in the Governor’s Mansion.
Such is the case with the NRA’s chief legislative goal this year — the so-called “castle doctrine” bill.
Gov. Joe Manchin is a lifetime NRA member and intends to sign the measure, which garnered nearly unanimous support in the Legislature, provided there are no legal foul-ups in the bill.
Twenty other states have enacted similar proposals that expand a homeowner’s right to protect hearth and home by using deadly force, if needed, to thwart a prowler.
And exercising such action isn’t limited indoors, either.
If an invader is about to commit a felony outside one’s home, force likewise is justified in the proposed law.
The key element in the NRA-backed bill, sponsored chiefly by Sen. Shirley Love, D-Fayette, is to provide a homeowner with protection in court if an intruder or his family brings a lawsuit after a violent confrontation. This bill says a property owner can use the burglar’s presence as “a full and complete” defense for using deadly force.
Florida became the first state to enact the castle doctrine, named after an old concept in English law that held a man’s home is his castle, and the wind, but not the king or, in modern application, a burglar, may not enter.
Manchin is on board with the legislation, first off because the Legislature overwhelmingly backed it. Only Delegate John Doyle, D-Jefferson, opposed it in either chamber.
“We respect their decision,” communications director Lara Ramsburg said Wednesday of Manchin’s attitude toward legislation approved with landslide support.
A similar bill died in the House Judiciary Committee a year ago in the final week of the session. This one focuses on protection in lawsuits since West Virginia has never obligated a potential crime victim to retreat in the face of an adversary inside one’s domicile.
More importantly, however, is Manchin’s approval of the idea of safeguarding one’s home with protections afforded by the law, Ramsburg said.
“It is a concept that he supports in terms of protecting your own home,” Ramsburg said.
So far, the bill hasn’t arrived at the governor’s office.
“As always, our responsibility when we receive a bill, our legal staff looks at it to make sure it’s legally sound and there are no technical issues. Short of that, he intends to sign it.”
From the Beckley Register-Herald:
House geared to vote on amended DUI bill
CHARLESTON — A proposed update in West Virginia’s drunken driving law exited a key House panel with one alteration that proponents say is acceptable.
Omitted was a provision in the Senate version that would have mandated blood alcohol tests of any motorist suspected of being drunk after a fatal highway accident.
Donna Hawkins, head of Mothers Against Drunk Driving in West Virginia who spearheaded the legislation, wanted to see the Senate bill left intact.
But Hawkins said Wednesday she was assured by House Judiciary Chairwoman Carrie Webster, D-Kanawha, that she would draft a bill for the 2009 session to deal with such testing.
A House vote on the revised bill is expected Friday.
“I have no problem with it,” Sen. Dan Foster, D-Kanawha, said.
Foster was pleased the House panel didn’t tamper with the major components, led by a new offense of “aggravated DUI” for motorists with a BAC of .15 or above. For them, Interlocks attached to vehicles to test a driver’s breath for alcohol would be mandatory.
First-time offenders would have the option of using Interlocks, and the incentive built in the measure would cut in half their license suspension from the existing 30-day period.
A third key element eliminates the mandatory 24-hour lockup for first-time offenders with a BAC of .08 to .149 as a cost-cutting step for counties, many of which are struggling to pay regional jail costs.
Existing practice allows counties to be charged the per diem rate of $48.50 (due to be cut by 97 cents in July) twice since an offender can be jailed a few hours, then returned after going before a magistrate.
Jail costs are swallowing up much of some county budgets. Last year, for instance, Raleigh County was billed more than $2.5 million for keeping inmates at Southern Regional Jail.
“The main points of our legislation are in there,” said Foster, who worked closely most of last year with an ad hoc committee anchored by Hawkins while lawmakers prepared a bill in tandem during the interims.
“I’m convinced it will save lives. And also, it will save resources for the state as well. It’s a good combination.”
From the Beckley Register-Herald:
Panel advances DUI measure with ‘aggravated’ clause
CHARLESTON — Nearly a year in the making, a revision of West Virginia’s drunken driving law that punishes motorists with a blood alcohol content of .15 or higher exited the Senate Finance Committee Tuesday with its blessing.
Another key element seeks to provide counties and cities with relief from regional jail costs by eliminating the mandatory 24-hour term that now results in “double bookings” that cost $48.50 per diem.
A third provision lets first-time offenders choose to install Interlocks to see if they have ingested any alcohol — regardless of BAC — and if any is present, the ignition won’t start.
By electing to use Interlocks, first-time offenders can cut in half the current 30-day license suspension.
For anyone blowing a BAC of at least .15, the crime would be considered “aggravated DUI” and Interlocks would be mandatory. So is a jail term running from two days to six months.
“It’s a very important bill in terms of safety, as well as for courts and municipalities,” said Sen. Dan Foster, D-Kanawha, the key sponsor.
“For me as a physician, safety is the most important part. We’re into the technology age now. We’ve reached the point where we can’t get any farther down in terms of deaths and injuries. This is a start.”
Donna Hawkins, state director of Mothers Against Drunk Driving, spearheaded last year’s interims drive and anchored a special ad hoc committee that worked in tandem with lawmakers.
In 2006, the last year that statistics are available, drunken motorists killed 129 people in West Virginia and were blamed in 2,600 non-fatal injuries.
“This is a historical, landmark piece of legislation for West Virginia,” she said.
“This is going to save lives. It’s going to get offenders back on the road quicker. It’s going to save on regional jail costs. It has a lot of great elements in it.”
While no hard figures were available on potential jail savings, Hawkins pointed out as many as 7,000 first-time offenders are jailed each year.
MADD preferred to see mandatory use of Interlocks for first-time offenders with a BAC of .08 to .149, she said, “but at the same time, there is a great incentive in this legislation for those with low BAC levels.”
Committee counsel advised one panelist, Sen. Jesse Guills, R-Greenbrier, that any vehicle used by a convicted drunken driver must be equipped with the Interlock to stay in the program.
And another member, Sen. Vic Sprouse, R-Kanawha, was told that alcohol in a driver’s system will prompt the Interlock to prevent a vehicle from starting.
“There’s really no tolerance,” Foster said.
Hawkins said her group was pleased to see West Virginia move closer to the “aggravated DUI” law. One provision calls for a 45-day license suspension for such offenders, followed by 270 days on the Interlocks.
“Those are the offenders that are true problem drinkers and cause the majority of fatalities in West Virginia,” she added.
From the Beckley Register-Herald:
Note: Isn’t it just like big-government politicians, such as we have here in West Virginia, to give people the right to carry concealed weapons, and then apply a bunch of arbitrary rules that nobody will know or be able to follow? That’s just what West Virginia needs, more rules. Maybe we could get those signs that the State of Virginia has when you drive into it listing everything that the all-knowing politicians have declared as illegal. – John H. Bryan, West Virginia Criminal Defense Attorney.
Legislation on guns causing stir
CHARLESTON — Concealed weapons are making quite a bang in this legislative session.
One such proposal would conceal more than sidearms — it would keep a prying public from knowing just who has secured such permits. But that bill caused such a stir the House of Delegates pulled it off the calendar.
Over in the Senate, two other proposals embracing guns have surfaced.
Sen. Shirley Love, D-Fayette, is attempting to get the National Park Service to either recognize visitors who have concealed weapons permits — including non-residents — or post signs warning them their firearms aren’t allowed on federal land.
In his own measure, Sen. Clark Barnes, R-Randolph, wants to clear up language the attorney general’s office feels is a bit murky on the reciprocal agreements West Virginia holds with other states.
“We’re making lots of progress,” Barnes says. “But the attorneys from the attorney general’s office working on this say we need to clean up in our reciprocity to be able to open it up for other states’ licensees to be able to carry here, or our licensees to be able to carry in other states.”
Love says about 16 states honor West Virginia’s right to keep a hidden weapon on one’s person.
“We’re spending mega dollars to advertise for people to come into Fayette County and see ‘Wild, Wonderful West Virginia,’ and the New River Gorge, ride the whitewater or rock climb,” he says.
“But if you take that pistol off Fayette Station and go down into the gorge, and the NPS would stop you for speeding, they can say to you, ‘Do you have a weapon in your automobile? Do you have a weapon on you?’”
Since firearms are disallowed on federal property, the senator says, any visitor toting one inside the gorge could wind up behind bars, even though West Virginia recognizes such permits in the other states.
In his resolution, now before the Senate Natural Resources Committee, the senator is asking the NPS to at least post warning signs at park entrances if it cannot honor concealed weapons permits.
“That way you could separate the weapon and ammunition, put your weapon in the trunk of the car and lock it, and put the ammo in the glove compartment,” Love says.
“But there are no signs now. This could be entrapment.
“You could wind up probation for a year. It could cause you to lose your pistol permit and bring a fine.”
Love says a bill is pending in Congress to alter NPS regulations so that concealed weapons permits would be honored in the park system.
“But in the meantime, in places like the New River Gorge, let’s at least put signage up and amply warn people coming in from other states.”
The House bill was intended to protect victims of domestic violence by keeping secret their addresses after they file for concealed weapons permits. But concerns raised by the West Virginia Press Association over the public’s right to read public documents prompted the Democratic leadership to pull the bill.
Majority Leader Joe DeLong, D-Hancock, says the proposal can yet find its way back on the special calendar with two weeks left in the session if it can be tweaked to appease the Fourth Estate.
A year ago, the Legislature altered the state’s reciprocity bill, and the attorney general’s office began taking steps to conform, Barnes said.
“What we had to do in our original language is pretty much that their system had to be identical to our system. But there are some other states that don’t necessarily have an identical system but they may have a stronger system that operates differently. So we’re just trying to clean it up to make it more reciprocal with more states.”
From the Beckley Register-Herald:
Note: What public interest is there in the names and addresses of law-abiding citizens who obtain concealed weapons’ permits? And if there is legitimate public interest, then why must the addresses be included? Why not start publishing the names and addresses of welfare recipients? Taxpayer money is being funneled to it, government bureaucrats are administering it, and members of the public are receiving it. The answer: the Press supports expanded welfare programs, but does not support the 2nd Amendment. – John H. Bryan, West Virginia criminal defense attorney.
Concealed weapons bill in limbo in House
By Mannix Porterfield
CHARLESTON — Delegate Rick Moye packs a hidden piece for his personal protection but is ambivalent about a proposal to deny public access to concealed weapons permits.
Moye’s reservations aren’t unique in the House of Delegates.
This week, the Rules Committee yanked from the active House calendar legislation that would make it no one’s business just who is toting a firearm under a court-approved permit. The bill was offered by Delegate Bill Hamilton, R-Upshur, with 10 co-sponsors, among them Delegates Mike Burdiss, D-Wyoming, Joe Talbott, D-Webster, and Mike Porter, R-Mercer.
There is a chance, however, the measure might be tweaked so its scope is narrowed to the very people it was intended to protect — victims of domestic violence.
“I can see both sides of that story,” says Moye, a school bus driver and body shop owner in Raleigh County.
“I can understand why you wouldn’t want that to be public knowledge for everyone to know. On the other hand, it’s a public record. When do you draw the line that you can conceal information?”
Obviously, the Rules Committee had problems wrestling with that as well, especially after the West Virginia Press Association reared itself into the issue, Majority Leader Joe DeLong, D-Hancock, said Thursday.
“I’m not sure where we’re at in the process, but I hope we can go back and revisit that bill and put an exemption in it when it comes to victims of domestic violence,” he said.
“I think that was the original intent of the bill. I think that’s what spurred this legislation.”
Domestic violence victims secured concealed weapons permits, only to have their addressed revealed to the reading public by newspapers, the majority leader said.
“We may be able to carve out an exemption for those people without taking away what’s considered to be the general right of the public to have access to this information,” DeLong said.
“The problem is in trying to strike a balance. There’s a certain segment of people that we’re trying to help. We still need to help those people and protect them. At the same time, we want to recognize the freedom of the press in having this type of information available as it should be in most other cases.”
Moye said he has no problem with people knowing he is legally armed. Without elaborating, the delegate said he got the permit for his personal protection.
“I’m a firm believer in my rights to keep and bear arms,” Moye said.
“I’ll not shy away from that at all. I just feel like it is a right, a privilege that I have, and I will exercise that privilege. And I totally support the Castle Doctrine. Common sense tells me that if someone is going to come and harm me, I don’t want to run from them.”
From the Beckley Register-Herald:
DUI bill taking minor detour to Finance Committee subpanel for study
By Mannix Porterfield
CHARLESTON — A year-long effort to encourage the use of Interlocks to test the sobriety of drivers and punish more harshly those with a blood alcohol content of .15 or higher ran into a temporary detour Thursday.
Mindful of the complex nature of the bill, Senate Finance Chairman Walt Helmick, D-Pocahontas, decided to dish it off to a three-member subpanel.
Donna Hawkins, state president of Mothers Against Drunk Driving, the prime mover of the bill that consumed a year of interims study and work by an ad hoc panel she directed, was visibly disappointed by the delay.
But Sen. Dan Foster, D-Kanawha, who keyed the push for the bill in the Legislature, didn’t mind that a panel composed of Majority Leader Truman Chafin, D-Mingo, Education Chairman Robert Plymale, D-Wayne, and Sen. Vic Sprouse, R-Kanawha, would study it further.
“I don’t object to that,” Foster said afterward. “They want to look at the financial aspects.
“It’s a complicated bill. I think the tenor of comments we heard from the other members of the committee indicated they will move on it.”
The idea is cut from 30 days to 15 the length of a license suspension of first-time offenders who voluntarily install the Interlock, a device that measures BAC and won’t let one start if it’s too high.
“We’re going to run the bill,” Chafin promised. “We want to understand the bill more clearly. Obviously, it’s a big issue in West Virginia. We’ve got jails full, and prisons.”
In the so-called “aggravated DUI” category of .15 or above, motorists would spend a mandatory jail term of two days to six months and be fined from $200 to $1,000. A license could be revoked for up to 270 days.
Another aspect that makes it attractive to counties struggling to pay regional jail costs wipes out the mandatory 24-hour lockup for first-time offenders.
“What actually happens now, individuals are brought into a holding cell to see a magistrate, and that could be two hours or 10 to 12 hours,” Foster told the panel.
“Then they will see a magistrate who can decide whether they stay 24 hours or not, or is free to leave. Before, they had to go back and finish up the 24 hours.”
And that, he emphasized, amounts to double booking for the same offense, meaning a county has to shell out twice for the same individual.
Hawkins told the panel she has no problem with eliminating the 24-hour mandatory sentence in existing law.
“We think this is an excellent bill,” the Charleston resident said. “We fully support this piece of legislation. We think it will save lives.”
In 2006, the last year figures were available, drunken drivers were blamed in 129 deaths and some 2,500 non-fatal injuries.
“What we have found with MADD is that jail time alone is not the deterrent,” she said.
“We believe the Interlock provision in this bill will help save lives. And it gets the offender back on the road faster. It allows them to provide for families. And it will also save on regional jail costs, which we know is a big concern.”
From the Beckley Register-Herald:
Here in West Virginia, productive individuals and small businesses are taxed to death, the economy is awful, the business environment is awful, and we have one of the largest state governments per capita in the country. There are so many important reforms that could be implemented by the state legislature to improve the situation. However, the West Virginia Senate apparently has more important priorities. If the legislature wants to change negative behavior and actually have a positive impact on our state, I have an idea: enforce the speed limits in our rural towns and counties, where innocent people are killed and maimed everyday due to reckless and negligent drivers. That, or the economy is something worth worrying about. – John H. Bryan, West Virginia criminal defense attorney.
‘Can’t touch this’
Senator wants to ban lap dances
CHARLESTON — Lap dancing would be a no-no in West Virginia strip clubs in a new bill authored by Senate Majority Whip Billy Wayne Bailey.
And such clubs must stop the music and the nude dancing at the midnight hour, six hours earlier than existing law allows, if the bill is enacted.
Known as the West Virginia Community Defense Act, it was offered by Bailey at the request of the West Virginia Values Coalition.
“It curbs the secondary effects of sexually oriented businesses,” Bailey said Wednesday.
“And it stops the actual entertainment at midnight. No more dancing from midnight to 6 a.m. By midnight, the girls have to stop working.”
What’s more, it sets a 6-foot buffer zone between the strip teasers and the patrons.
“No touching allowed,” the senator said. “No lap dancing.”
Bailey said real estate that surrounds such exotic dancing establishments has tended to suffer in value.
“It’s just dead,” he said. “The price goes down. It’s just bad for the community. You have crime going up after midnight around those places.”
Another intent is to offer a measure of protection to the dancers, he said.
“Girls have uninvited advances made to them and things of that nature,” he said. “This would offer protection for participants on both sides of the situation.”
In a statement, the Values Coalition said Bailey’s bill intends to provide West Virginia families with “limited protection from the ancillary effects that sexually oriented businesses impose on the surrounding community.”
“Studies show that sexually oriented businesses are breeding grounds for forced prostitution, sexual assault, illicit drug use, drug trafficking, sex trafficking, property crimes, blight, burglary, litter and the spread of disease,” the Charleston-based group said.
“By regulating the peak hours for the commission of these secondary effects and creating personal buffer zones, the secondary effects to the community by sexually oriented businesses are greatly diminished.”
From the Beckley Register-Herald:
Senate unanimously OKs ‘Castle Doctrine’ bill
By Mannix Porterfield
CHARLESTON — Senators agreed Tuesday that one’s home is a castle, open to the wind but not to intruders with evil in mind.
And if any is caught pilfering, the owner is allowed to use deadly force, and may use the fear of a threat the intruder poses as a “full and complete defense” in case the burglar files a lawsuit over his wounds.
As things turned out, the bill’s leading proponent the past two sessions, Sen. Shirley Love, D-Fayette, wasn’t around to take part in the 32-0 tally that propelled the “Castle Doctrine” bill on to the House of Delegates.
Love missed a second straight day, tending to an ailing sister in another state, his secretary explained.
Senate Judiciary Chairman Jeffrey Kessler, D-Marshall, made note of Love’s lead sponsorship of the bill, saying it was intended to protect families and homeowners from acts of invasion and violence.
A stronger version was offered in time to beat the 41st day deadline for offering legislation by Senate Transportation and Infrastructure Chairman John Unger, D-Berkeley.
Unger offered his own tack, one that would disallow a wounded intruder to even file a lawsuit in the first case.
In the Eastern Panhandle, Unger said, seniors increasingly have become targets of burglars who apparently consider them easy marks for break-ins.
To Unger, the idea of a senior citizen forced to use deadly force to thwart an invader, then face a lawsuit, was unthinkable.
“They amend it over in the House and it may have to come back for conference,” Unger said.
For now, he said, the Senate at least has a Castle Doctrine bill out, and like any other proposed law, it can be altered if the need presents itself.
“We can always come back and tweak it in the future, be it this session or a future session,” he said.
The measure was pushed by the National Rifle Association, and so far, at least 20 states have some form of it.
Perhaps, Unger suggested, seniors could be accorded some extra protection outside the concept of the Castle Doctrine.
“Maybe in enhanced penalties or whatever to people who prey on seniors and put them at risk,” he said.
“Who knows what we can do as far as the crimes and type of penalties associated with it?”
Note: Some states impose a duty to retreat from an intruder, even in one’s own home. Although West Virginia does not impose an actual duty to retreat from confrontation in one’s own home, it has somewhat been left up to interpretation. Furthermore, homeowners legally defending themselves can be sued civilly for personal injuries to an intruder – which is absolutely ludicrous.
This legislation is common sense. We know that in WV, especially in rural counties, we cannot depend on calling 911 to protect us from home intruders. We must be allowed to protect ourselves and our families from the crazy people of this world. As Charlie Daniels said, he’s “the kind of man that wouldn’t harm a mouse,” but if he catches somebody breaking in his house, he’s “got a twelve gauge shotgun waitin’ on the other side.” – John H. Bryan, West Virginia criminal defense attorey.
From today’s Beckley Register-Herald:
Panel approves ‘Castle Doctrine’ proposal
CHARLESTON — West Virginians could yet face a lawsuit for gunning down an intruder in their homes, but using deadly force to protect hearth and home would be a “full and complete defense” in court under a Castle Doctrine bill approved Wednesday.
Without any discussion, other than counsel’s brief explanation, the measure cleared the Senate Judiciary Committee unanimously.
For two years, Sen. Shirley Love, D-Fayette, has pushed the idea at the behest of the National Rifle Association, which has succeeded in getting similar bills enacted in 20 other states, starting with Florida.
While existing state law doesn’t require that a homeowner retreat as much as possible to avoid a showdown with an intruder, as some states insist, it does leave open the door to civil suits by a wounded prowler.
Under the committee-approved bill, however, the “justified use of reasonable and proportionate force” can be used as “a full and complete defense to any civil action” pursued by an intruder or attacker.
“People have got to remember, this is not a license to kill,” Love said after the committee, on which he doesn’t serve, moved the measure out with a favorable recommendation.
“This is something that gives you protection in your own home.”
Last year, the full Senate approved an identical bill, but it became mired in the judiciary committee of then-new Chair Carrie Webster, D-Kanawha, in the House of Delegates.
The measure draws its moniker from old English common law that held every citizen, regardless of station in life, could consider his property as a castle, in which, as one old saw held, the wind, but not the king, may enter.
“It’s a bill that a high majority of West Virginians have wanted for so long,” Love said.
In the Senate, the sentiment was unanimous. All 34 members have signed on to it.
“It’s been the intruder that has been protected by the law instead of the home that he’s intruding in,” Love said.
Judiciary Vice Chairman Mike Oliverio, D-Monongalia, pointed out West Virginia enjoys the lowest crime rate in the nation.
“But I think West Virginians really support their Second Amendment rights,” he said.
“And they believe it’s important that they be able to protect themselves. “
Over the years, he said, courts have issued rulings that reflect those constitutional guarantees.
However, Oliverio said a new Supreme Court some day might not see things as the current one does with regard to the Second Amendment.
“There may be changes that impact the ability for persons to protect themselves the way they see fit,” he added.
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